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About this blog: The Raucous Caucus shares the southpaw perspectives of this Boomer on the state of the nation, the world, and, sometimes, other stuff. I enjoy crafting it to keep current, and occasionally to rant on some issue I care about deeply... (More)

About this blog: The Raucous Caucus shares the southpaw perspectives of this Boomer on the state of the nation, the world, and, sometimes, other stuff. I enjoy crafting it to keep current, and occasionally to rant on some issue I care about deeply. My long, strange career trip has included law and management jobs in two Fortune 50 companies, before founding the legal search and staffing firm Cushing Group, Recruiters. I've lectured on negotiation and settlement strategy, and teach graduate courses at Golden Gate University (Adjunct of the Year for a doctoral seminar on business, law and society). Illinois, Texas and California (Inactive) admitted me to law practice; I hold JD and MBA degrees from the University of Illinois, and a BGS from the University of Michigan, with Distinction. There -- Go Blue! Personally, my daughters are a lawyer in NY, and a pre-med student in NM - their lives-and-times often animate these columns. I'm active in animal advocacy matters, having led a citizen team that took Alameda's city animal shelter to a non-profit operation - we saved $600K annually and the lives of some 700 companion animals/year vs. the City's best alternative. I'm delighted with that success. My family has re-homed 144 foster animals over many years; we host four boisterous border collies of our own. Mostly for humane movement efforts, I was nominated for GQ magazine's 2009 Better Men, Better World Award. You may notice that many of my rants relate to critter issues. In addition to the Raucous Caucus blog, I frequently contribute to The BARK magazine, and am a proud Moderator emeritus on the popular news and humor website www.Fark.com. I prefer scotch over imported beer (Hide)

The House Pulls a Boehner *

Uploaded: Jul 31, 2014

What do you call it when the House of Representatives, which has repeatedly voted to repeal ObamaCare, now sues the President for failing to implement it fast enough? In DC, they call it Wednesday. TeaPers call it a good first step. Democratic fund-raisers call it heaven. The New York Times calls it the death of irony, and so far John Q. Public calls it a colossal waste of time. John Q is often right, so let's take a closer look at the likely case, which has yet to be formally filed.

The Lawsuit. In response to the House's unwillingness to move legislation on numerous issues (e.g., immigration, minimum wage), the President promised in his State of the Union address to use his Executive Order (EO) powers to implement certain policy changes that he favors, where he could. He has done so, although by the coarse measure of raw numbers, he has issued fewer EOs than most predecessors. The Executive Branch action on which this lawsuit will be based specifically involves delaying the so-called Employer Mandates of ObamaCare by one or two years.

The Constitution divides governmental powers among its three branches: in purest form, the Congress legislates, the Executive implements and the Judiciary decides cases. This lawsuit will claim that Mr. Obama's reprieve to employers was, in effect, a legislative action. The GOP majority, having already stymied the 'hope and change' agenda by becoming a black hole from which only bile escapes, seeks to defeat even the Administration tinkering promised in the State of the Union message.

The Issues. There are two: one procedural, the other on the lawsuit's merits. The first is whether the House of Representatives has so-called 'standing' to bring this lawsuit to the Judiciary. In more than 200 years of contentious American history, 'separation of powers' cases are exceedingly rare. An ad hoc gaggle of GOP Congressfolk tried it in the 1990s, but failed. This, however, is an official, if thoroughly partisan, act of that body.

The problem is made dicier by the fact that this Mandate delay is what's called a benevolent suspension -- meaning that nobody is hurt by it (perhaps except insurers, whose premium revenues may be thereby delayed. They have not complained, and actual, individual revenue loss is speculative). To most people, that means something like "no harm, no foul", but to lawyers it raises the concern that a check-and-balance in the system may be missing (lest the executive branch be allowed to do remake legislation with some impunity). It creates an "if not the House, then who?" problem for the Courts. Still, this issue gives the courts an easy way to nip this case in the bud if they're so inclined, by simply denying standing.

On the merits, the question will be whether the Prez has so far-overstepped his role that the Courts must intervene. A few points here: generally, the Supreme Court has declined to enter partisan political frays between the other two Branches, and all Presidents tinker with implementation (including Mr. Obama's immediate predecessor). Mr. Bush let seniors off-the-hook for failing to meet a legislatively imposed deadline to file for a drug benefit -- if that's news to you, it's because such acts have been pretty routine in the past, at least prior to the current Dead Bill Era of governance.

There may be some interesting court-politics inversion here, as the arch-conservative Scalia is seen as inclined to let the boys in the Branches duke it out, but liberal Sotomayor has fretted that there Must be a remedy (although there is: impeachment). On the combination of the issues, I just don't think the Supremes want to open this box  on this particular controversy, or as a precedent for the future. I rate it 65  35 that the lawsuit fails.

Timing. As the saying goes: 'justice delayed is justice denied,' meaning that timing matters. This case simply cannot reach the Supreme Court before 2016, when the second of the Employer Mandates is already scheduled to go into effect. That makes this exercise a very empty gesture  a 'stunt,' even. The only way I can see it going faster would be if the Administration decides to pull a Br'er Rabbit and move to implement the Mandate faster. Who would most hate that outcome? The GOP's business lobby, which worked overtime to get the delay.

Remedy. Courts are pretty good at picking winners and losers; they are generally lousy at fashioning policy remedies that actually work (remember 'busing?'). If the Courts were to decide that Mr. Obama over-reached, how will it craft a decision-rule to guide the future? What will the proper limit of Executive power be? And if they allow one co-equal branch to sue another, how soon will the Executive sue the Senate to move nominations along, or try to force the House to do … anything? It would not take long, I'm guessing.

Precedent Value. Let's assume that the House wins. What implications would that carry for the future? One line of thought is that it would rein-in the contrary inclinations of the next Dem President, assuming the GOP retains the House in 2016. That specific outcome is multiply speculative. What is certain, longer term, is that a win would set the stage for similar litigation any time there's a House or Senate majority that differs from the President. It's a "be careful what you wish for" situation for both Parties -- right now, it's the GOP-as-plaintiff, but later? They could reap the whirlwind.

Further, does throwing routine litigation uncertainty, and delay, into the uber-partisan chaos of contemporary politics really portend good policy for the public? Isn't this stuff better left to majority votes and veto overrides in the immediate term, and to the voters, who can replace over-reachers? Are we really better-off turning it over to 'the lawyers?' The Party that purports to bemoan our litigious society and opposes 'frivolous lawsuits' might take a pause to reflect on such an unelected-pettifoggers-run-amuck scenario.

When you add it all up, this looks like an "error, especially an egregious one." It's dubious on the legal merits, it can't be completed in-time to serve its stated purpose, there's no good, workable remedy available, and it sets-up a bad policy for the future. I have marveled (with some dismay) at the GOP's ability to control the dialog throughout Mr. Obama's terms. They have kept the Dems on their heels throughout that interval. This time, though, I suspect they are the ones who have over-reached  and will badly fray John Q's patience. Mr. Obama's approval percentage may be mired in the low 40s  the one for Congress stands at 13%, and trending south.

For those of you too worried about clicking on the link, the ACA is approaching all time highs of disapproval and they're getting worse. Congress having bad polling does not make a bad law any better, and you can clearly see this in the polls.

And now it comes out that the Healthcare.gov has now cost us $840 MILLION to create and fix (from CBS): Web Link

Let that sink in for a sec...$840 million...for a website! Anybody in tech knows this is a complete waste of our money and the absolute stupidity in this rollout is monumental.

Politics aside, this is a bad law written and managed largely by grossly incompetent people.
And yet, no one will be fired.

But hey, let's talk about congressional lawsuits instead of how the gov just keeps wasting our money.

Posted by Tom Cushing,
a resident of Alamo,
on Jul 31, 2014 at 10:24 pm

Great comments fellas -- for some other blog where they might have any shred of relationship to what was written there. I saw somebody in the PW threads call this phenomenon ODS -- Obama Derangement Syndrome.

Whatever the problem -- it's Obama's fault. And if it's not on this issue, well, what about that other thing!? But -- the election! But -- the border! But, the ACA! Look -- a butterfly!!

Cholo: I think he's stable, and I do not envy him his job. His caucus, however, seems to be showing signs of unraveling, under pressure from TeaPers in the thrall of Mr. Cruz. They are delaying action on a bill -- sent from the Administration -- to help deal with The Border. (ahem) FWIW, they've stated that the Prez can act without their blessing, in this particular case. It's just a cynical variation of the 'starve the beast' game, played with the lives of children. Brown children.

Nuke: This is not about the popularity of the ACA, either. The mainstream polls I saw on it were in the 39% range -- remarkable given the sustained onslaught of semi-solids heaved its way. More to the point, 57% of JohnQs don't like the lawsuit already -- and most don't even know what it's about yet.

If the House goes home and all they've managed to do is agree to this empty (law)suit, John Q may begin to see them as self-serving grifters on the public dole, as one commenter said elsewhere.

Posted by Chris,
a resident of another community,
on Aug 1, 2014 at 10:49 am

First, I find it ironic itself that those who complain the most about the uber partisan climate fan the flames by claim what ever comes out of the republican majority as "bile", and yet, the ACA came out of that majority, with a bit of political shenanigans from the dems, who couldn't get it passed.

The lawsuit represents an interesting quandary in the balance of power: if Congress passes a bill that the President signs into Law, but then He (She?) decides not to enforce it as written, what course of action should Congress take to ensure enforcement? Lawsuit? Impeachment? What is the Presidents obligation to enforce the laws as written? No obligations? A total Obligation? Only those parts he wants to?

I'm not in agreement with the lawsuit, but how else can Congress proceed if the President picks and chooses the parts he wants, and ignores the parts he doesn't want?

Posted by Tom Cushing,
a resident of Alamo,
on Aug 1, 2014 at 11:55 am

Hi Chris: thanks for your comment. You seem to believe that those who dump poison in the well and those who describe and ascribe the contamination are equally to blame for the well's toxicity. I don't think that's so, and I believe the GOP's conduct since 2009 has been the precipitating process of the worst political acrimony in my (substantial) lifetime. The bargaining process requires two parties -- the Republicans will.not.dance.

You describe an interesting theoretical problem, one so theoretical that it has persisted since the ratification of the Constitution, without much attention paid to resolve it. And yet the nation survives. That's both because there has been ongoing understanding that tinkering by the Executive Branch is inherent in the implementation process of legislation, and the fact that the zeal of the minority party that it Must have its way, despite its minority status, is a very recent phenomenon.

My Cajun friends have a great word for it -- hope I am not miss-using it (they will let us know): it's "lagniappe" -- a little extra, a bit of leeway. That's what's needed here.

As the blog suggests, there ARE various remedies -- in the legislative give-and-take process (although it Does require some 'give'), the electoral process, and the judicial process (impeachment). If none of them works, there's a message in that failure -- sometimes you lose, despite the all-mighty righteousness of your crusade. And further, the lawsuit remedy is far worse than the theoretical disease it seeks to cure. It would unleash a plague of lawyers. Web Link

Finally, I'd suggest that this theoretical problem has very, Verry low priority relative to almost any other issue that the House has before it, and has refused to address. THIS is how they spend their time?

Cushing, your lawyerly rhetoric does nothing more than make you look like a fool. I can't figure out if you're attempting to showcase your writing chops, or actually attempting to persuade the reader with your own brand of stupidity. In either case, your lack of clarity exposes two things: An unbalance thought process. And two, your inability to effectively make an argument that gets to the point without the side show of bs that accompanies it.

Malcom X said it best: "...And during the few moments that we have left,... We want to talk right down to earth in a language that everybody here can easily understand.

Hiya Biff: thanks for slogging through the lawyerly rhetoric, blog after blog. Today, the blogger is your target (what happened to the 'southern border?'), but the name of the game is still: Change the Subject.

You can complain about me whenever you want -- do you have anything to say about The House Lawsuit?

I don't argue with folks who continually refuse to see things only one way. No matter what the subject line, it's always Dem vs Rep or left vs right with you; there is no balance.

Personally, I think the notion of impeachment of this President is a bad idea. The country is already far too divided. But your President has no one to blame but himself. What has he done about the border crisis? Nothing. And what about Israel? Yeah, great job Mr. President in making out closest ally over there feel real secure... Not.

Obama is not a Statesman, he is a Constitutional Law Professor. He can only argue theories about constitutional law, but not much else. He is a philosopher of sorts; someone who can talk a great deal, but not have the strength or resolve to actually see things through.

Posted by Tom Cushing,
a resident of Alamo,
on Aug 2, 2014 at 10:00 am

Biff: normally, 2 on-point sentences out of 12 wouldn't count for much, but it's such a dramatic improvement -- I'll take it. Even if the first paragraph may not say what you intend (those weren't the two good sentences, anyway).

(FWIW, I have taken the Administration to-task on issues like surveillance, CIA spying on their overseers, and coddling corporate criminals. Further, a blog by definition is my views -- if you observe a certain consistency among these writings, then thanks. And if you want to write your own blog, I look forward to it.)

Tom threw some perfectly decent mud, yet you Republicans didn't take his bait. You should be ashamed of yourselves, leaving Tom hanging like that!

Don't worry Tom, I've got your back.

Here's a little ditty for you...Remember when ABA president Michael S. Greco and an 11 member bipartisan panel said that when a president disregards selected provisions of bills that he signed, it flouts the Constitution, undermines the rule of law and is a threat to the Constitution?

I think that means it's sort of bad.

The Democrat Senator Patrick Leahy said cherry picking the law like that was "diabolical."

They said that back when Bush refused to enforce certain provisions of the Detainee Treatment Act of 2005 banning torture.

In fact, Democrats thought it was so bad, it was included as one of the 35 articles of impeachment that Democrats filed against Bush.

Democrats didn't go for that sissy lawsuit nonsense. No sir. They brought out the big guns. 251 Democrats voted yes to an impeachment resolution just 4 months before the 2008 election, even though it stood no chance of being implemented before Bush's presidency ended.

In other words, it was a political stunt, right before the election. Sound familiar?

You remember 2008, right? That's when your buddy Obama won the presidency.

By the way, do you know if Obama ever prosecuted any of the Bush officials who authorized torture? No?

Oh well. Maybe he'll get around to it during his third term. What's that? You say Obama can't have a third term because it's against the law? What if he just ignores the law?

Still think it's no big deal if a president ignores laws passed by Congress? Maybe so. Obama's violated the law literally hundreds of times and nothing bad's happened, right? As Tom says, "And yet the nation survives." Well, not everyone has survived.

There is that 16-year-old boy from Denver that Obama deliberately chose to kill. An American citizen. You remember him, right? Here's a letter from his grandfather to the NY times. Web Link

I wish the Republicans had sued Obama for that. Obama deserves to be impeached for that. Jailed, actually.

Tom Foolery, you temper anything bad you have to say about the Dems; in other words, there is no outrage. It's your simple way of saying, "Yeah, I'm upset about what the Dems just did, but the Rebubs had it coming." Your BS, Tommy Boy, just doesn't work. You leave yourself exposed.

Thanks S-P: you're right! All anyone had to make was one simple google search to find some history in the article you cribbed, from that left-wing rag the NYTimes, even. Web Link. Hooray for discourse!

Now, the fact that the comment mostly amounts to a "you're one, too" argument removes some of the lustre from your achievement, as does the fact that the 'diabolical' quote comes from a GOP Senator, about the same actions by Mr. Bush, the younger. More important, also omitted was the following paragraph:

"The [ABA] panel acknowledged that earlier presidents, including Andrew Jackson, Ulysses Grant, Theodore Roosevelt and Franklin D. Roosevelt, had occasionally asserted the right to disregard provisions of a law to which they objected."

You see, "you're one, too" really is a significant point of the blog  tinkering is done routinely by the Party In-Power, about which the Outs complain bitterly  BUT They Don't File A Lawsuit about it! The point of the blog is that the current GOP lawsuit nonsense is unprecedented, ill-advised and, ultimately, "a stunt." That's what is new and blog-worthy. It's a little like that brilliant "shutting-the-government-down stunt" that you may not recall.

Why do you say the Republicans' lawsuit is "unprecedented?" Why is it so different than Democrats filing articles of impeachment against Bush? Aren't both meaningless political theater?

Shouldn't Democrats have actually impeached Bush?

Why shouldn't Congress impeach Obama for spying, indefinite detainment, illegally gathering naked pictures of people, his "kill list" of people (including Americans) who can be summarily killed on sight without due process, using government institutions like the IRS and SEC for political retribution, killing hundreds of children in illegal drone strikes, violating international laws and treaties, etc.? The list goes on and on.

Don't we deserve a president who follows the law? When a president breaks the law, shouldn't there be consequences? What message does it send to the public when a president regularly breaks the law and never gets punished? Will the public start to think it's ok to break the law?

S-P: re 'unprecedented:' the fact that two actions have something in common does not make them identical. Jon Lester and I can both throw pitch from the mound -- the outcome is likely to vary by which of us does it. The GOP lawsuit is 'unprecedented' because it hasn't been done before, it's not called-for in the Constitution and its outcomes are potentially dangerous to a governance system that's already under strain. Three strikes, you're out.

Nuke: your answer is in the reply of 8/1, 9:34 AM. The '57% oppose' number, and growing, would have been a better way to close. Your 'popularity of the ACA' stat would not have been more on-point. The rest of your comment is just another ad hominem attack to change the subject. In your case, I suspect it's also your attempt to pin your nickname back on me -- but regardless, 'look, a butterfly!'

On the one hand, you say the lawsuit's "outcomes are potentially dangerous to a governance system that's already under strain."

Dangerous? Lol. Oh brother.

The case is a joke and you know it.

As you note, "the case is meaningless, as it cannot reach the Supreme Court before 2016, when the second of the Employer Mandates is already scheduled to go into effect. That makes this exercise a very empty gesture  a 'stunt,' even."

This entire crisis could be avoided if Obama would merely enforce the ACA law as written by Congress. He doesn't want to do that before this year's election, of course, as he's afraid of the problems the employer mandate might cause, for example employers stop offering employee healthcare coverage or reducing employee hours in order to avoid the employer mandate, which would hurt Democrats' election chances.

In other words, for Obama, this is all about politics. He wants to temporarily hide some of the bad effects of Obamacare until after the election so that people won't get mad and vote against Democrats.

Nuke: This is fun -- it's once again all about Meeee! If I responded to EVery silly Q posed in the threads, I would starve -- that's especially true of those that would require me to repeat what I've already written in the blog. The answer you seek is within (the blog), grasshopper.

It's like refusing to engage you on your absurd global warming denial: you Could consider it to be my gift to everybody else -- but you should Never consider it to be an admission, of anything.

One reprise is all you get, and you may add President Obama's predecessor, Mr.
"The Constitution is just a dam' piece of paper" to the list, together with every other Chief Executive and Commander-in-Chief.

"The [ABA] panel acknowledged that earlier presidents, including Andrew Jackson, Ulysses Grant, Theodore Roosevelt and Franklin D. Roosevelt, had occasionally asserted the right to disregard provisions of a law to which they objected."

Aw, maybe you're just warming up to defend Mr. Bush on the torture report that is due out in a few weeks. Big job, that.

Defend Bush?? Ha. Hardly. As I've said on these pages many times, Bush belongs in jail for authorizing torture, among other crimes. Obama should follow the law and prosecute Bush.

Just follow the law. That's all.

This goes far beyond his failure to enforce parts of Obamacare. No need for you to repost your ABA quote, which is beside the point.

Why hasn't Obama prosecuted a single Bush official for their crimes? Why aren't CIA torturers in jail? I'd offer my opinion, but you would merely accuse me of ODS. But it's likely the same reason Obama never prosecuted the bankers involved in the mortgage-lending scandals.

Bush and Obama have turned America into a lawless police state that kills its citizens, routinely denies due process, illegally spies on the Senate, Congress, the press, and ordinary citizens, uses government agencies like the IRS and SEC for political retribution, among many other crimes. Obama routinely violates the constitution he swore to uphold. You have to agree that America today is not the best America that you and I have seen in our lifetimes. I had hoped that Obama might have lived up to some of his soaring rhetoric during his 2008 campaign, but Obama's turned out to be nearly as bad as Bush.

Posted by Peter Kluget,
a resident of Danville,
on Aug 7, 2014 at 12:10 pm

"And yet Republicans are favored to win control of both the House and Senate.
What does that say about the public\'s opinion of Democrats?"

Democrats won more votes than Republicans nationwide in the House, Senate and Presidential elections in 2012 - millions more - and yet did not win control of Congress. Given the less-than-honorable gerrymandering of districts by the Republicans (soon to be followed by voter suppression thinly disguised as "fraud prevention") who wins control of Congress doesn't actually say much about the will of the people these days.

I await your principled expressions of outrage at these facts.

As to the recursive "If it's Obama's idea, it must be bad. If it's bad, it must be Obama's fault" echolalia of The Usual Suspects, I'll let Tom mop up the foam and spittle.

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